Citation Nr: 0712850
Decision Date: 05/01/07 Archive Date: 05/15/07
DOCKET NO. 05-31 780 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for bilateral presbyopia.
REPRESENTATION
Veteran represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to June
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri.
The veteran has raised the issues of increased ratings for
diabetes mellitus and erectile dysfunction. The Board refers
these issues to the RO for appropriate action.
FINDING OF FACT
Bilateral presbyopia is a refractive error of the eye, not a
disease or injury, and it was not subject to a superimposed
disease or injury during military service that resulted in
increased disability.
CONCLUSION OF LAW
Service connection is not warranted for bilateral presbyopia
on a direct or secondary basis. 38 U.S.C.A. § 1110
38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.303, 3.304, 3.310 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As a preliminary matter, the Board notes that regulations
enacted under the Veterans' Claims Assistance Act of 2000
(VCAA) require VA to notify claimants and their
representatives of any information that is necessary to
substantiate a claim for benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103(a), 5106, 5107, 5126 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a)
(2006).
The United States Court of Appeals for Veterans' Claims
(Court) has held that this notice must be provided to a
claimant prior to an initial, unfavorable decision on a claim
for VA benefits by the agency of original jurisdiction (AOJ).
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II). Regulations also dictate that VA has a duty to assist
claimants, essentially providing that VA will make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2005); 38 C.F.R. § 3.159(c) (2006).
In July 2004, prior to its adjudication of this claim, the
AOJ provided notice to the claimant regarding the VA's duty
to notify and to assist. Specifically, the AOJ notified the
claimant of information and evidence necessary to
substantiate the claim; information and evidence that VA
would seek to provide; and information and evidence that the
claimant was expected to provide. Thus, the Board finds that
the content and timing of the July 2004 notice comports with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
Additionally, the claimant's service medical records and
pertinent post-service medical records have been obtained, to
the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159. There is no indication in the record that any
additional evidence, relevant to the issue decided herein, is
available and not part of the claims file.
The Board notes that the veteran requested a hearing in front
of a Regional Office Decision Review Officer in October 2005.
That hearing was scheduled for February 2006. The veteran
failed to provide new medical evidence, and the hearing was
not held. No further hearing has been requested.
Additional efforts to assist the veteran in accordance with
the VCAA would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
In summary, the evidence does not show, nor does the veteran
contend, that any notification deficiencies have resulted in
prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (holding that due process concerns with respect to VCAA
notice must be pled with specificity). Therefore, the Board
finds that it would not be prejudicial to the veteran to
render a decision at this time.
Background and Evidence
The veteran served on active duty from January 1967 to June
1969. In June 2004, he filed a claim for service connection
for impaired vision, secondary to his service-connected
diabetes mellitus. The RO denied the veteran's claim in
September 2004 based on a determination that, "Presbyopia is
impairment of vision due to aging."
The veteran's service medical records are negative for
presbyopia or diabetic retinopathy. On the veteran's April
1966 entrance examination, the veteran stated that he was in
"good" health, and checked "yes" to affirm that he had
worn classes or contact lenses at some point during his
lifetime. On the clinical evaluation, the examiner noted
that the veteran's eyes were "normal." Uncorrected distant
visual acuity was reported to be 20/40, bilaterally, and
20/20 corrected, bilaterally. The veteran's eyes were also
noted to be normal on the June 1969 separation examination.
Once again, the veteran checked "yes" to glasses or
contacts, and stated that he was in "excellent" health.
Eye examination revealed that vision was 20/20 near and
distant.
In September 2003, more than 34 years following his
separation from service, the veteran was diagnosed with
"refractive error and presbyopia" at the St. Louis,
Missouri VAMC. This diagnosis was confirmed by subsequent
outpatient reports.
The veteran was afforded a VA examination in August 2004.
The examiner reported that the veteran did not have diabetic
retinopathy. No eye disability related to service was
indicated.
Law and Regulations
The Court has held that, in order to prevail on the issue of
service connection on the merits, there must be medical
evidence of (1) a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. Hickson v. West,
12 Vet. App. 247, 253 (1999).
Secondary service connection may be granted for a disability
that is proximately due to, or the result of, a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2006).
With regard to the matter of establishing service connection
for a disability on a secondary basis, the Court has held
that there must be evidence sufficient to show that a current
disability exists and that the current disability was either
caused by or aggravated by a service-connected disability.
Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
Additionally, when aggravation of a non-service-connected
disability is proximately due to or the result of a service
connected condition, such disability shall be compensated for
the degree of disability (but only that degree) over and
above the degree of disability existing prior to the
aggravation. Id.; see also 71 Fed. Reg. 52744-52747 (Sept.
7, 2006).
A claim of service connection for a disability must be
accompanied by medical evidence establishing that the
claimant currently has a claimed disability. Absent proof of
a present disability, there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38
U.S.C. § 1110 requires current symptomatology at the time the
claim is filed in order for a veteran to be entitled to
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997) (38 U.S.C. § 1131 requires the existence of a present
disability for VA compensation purposes).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.303, 3.304 (2006). This includes injuries or
diseases incurred during active duty for training. See 38
U.S.C.A. § 101(24) (2006).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2006). In
addition, certain chronic diseases may be presumed to have
been incurred or aggravated during service if they become
disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2006).
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Standard of Review
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 3.102. The Board must assess the
credibility and weight of all the evidence, including the
medical evidence, to determine its probative value,
accounting for evidence that it finds to be persuasive or
unpersuasive, and providing reasons for rejecting any
evidence favorable to the appellant. See Masors v.
Derwinski, 2 Vet. App. 181 (1992). When the positive and
negative evidence as to a claim is in approximate balance,
thereby creating a reasonable doubt as to the merits of a
claim, the claimant prevails. Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is inapplicable.
Id. at 1365.
Discussion and Analysis
The veteran asserts that his impaired vision is secondary to
his service-connected diabetes mellitus. However, he is not
competent to make that assessment as he has not been shown to
possess any particular medical expertise. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R.
§ 3.159 (a)(1) (competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions). Thus, the Board cannot grant
service connection for the veteran's bilateral presbyopia
based on lay statements alone.
The veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu. Therefore, while the veteran is
competent to report what comes to him through his senses, he
does not have medical expertise. See Layno v. Brown, 6 Vet.
App. 465 (1994). Accordingly, he cannot provide a competent
opinion regarding diagnosis and causation.
In this case, the veteran has a diagnosis of presbyopia.
Presbyopia is a visual condition that usually becomes
apparent in middle age, and in which loss of elasticity of
the lens of the eye causes defective accommodation and an
inability to focus sharply for near vision. See McNeely v.
Principi, 3 Vet. App. 357, 364 (1992).
To that end, refractive error of the eyes is not a disability
within the meaning of applicable regulations providing for
payment of VA disability compensation benefits. 38 C.F.R.
§§ 3.303, 4.9. Service connection may be granted for
congenital or hereditary diseases, if initially manifested in
or aggravated by service. VAOPGCPREC 82-90 (July 18, 1990);
VAOPGCPREC 67- 90 (July 18, 1990). As refractive error of
the eye is not, by law, a disease or injury, it requires more
than an increase in severity during service in order to
warrant a grant of service connection. The evidence must
show that the refractive error was subject to a superimposed
disease or injury during military service that resulted in
increased disability. See VAOPGCPREC 82-90; Carpenter v.
Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet.
App. 513, 514-15 (1993). Otherwise, the claim must be denied
based on a lack of entitlement under the law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
The evidence in this case does not show that any superimposed
disease or injury occurred during military service that
resulted in any increased disability. The veteran's service
medical records make no reference to any injuries of the
eyes, nor has the veteran made such a claim. As noted
previously, the veteran's service medical records are also
negative for any complaints of impaired vision. The
veteran's visual acuity was 20/20 at service separation.
There is no competent medical evidence establishing an
etiological link between presbyopia and service-connected
diabetes mellitus or service. As a result, there is no
evidence in the record to support service connection, on
either a primary or secondary basis, for the veteran's
presbyopia.
The Board also notes that, on his VA Form 9, the veteran
essentially stated that he felt that his impaired visual
acuity was due to medication taken for erectile dysfunction
caused by service-connected diabetes. It is noted that, at
that time, the veteran was taking Sildenafil for that
disorder. However, the veteran has not submitted any medical
evidence establishing a causal connection between Sildenafil
and his presbyopia.
While the Board recognizes the veteran's sincere belief in
the merits of his claim, the preponderance of the evidence is
against a finding of service connection for his presbyopia.
In reaching this conclusion, the Board acknowledges that the
benefit of the doubt is to be resolved in the claimant's
favor in cases where there is an approximate balance of
positive and negative evidence in regard to a material issue.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not for application in this
case and service connection is not warranted. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Service connection for bilateral presbyopia is denied.
______________________________________________
S. L. Kennedy
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs